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Estates Notes

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Right to Alienate a Fee Simple Merttens v Hill (Ch. 1901) Facts

• The plaintiff sued the defendant for a customary fine arising out of the conveyance of the land. Issue

• Fee Simple - Right to Alienate Judgment (Cozens Hardy J)

• The freehold of the land resides in the tenants of an ancient demesne.

• The exacting of a fine by the lord on people is in contravention of Statute Quia Emptores which gives full right of alienation of land to holders of a fee simple interest. Attwater v Attwater Facts

• The testator granted an estate to A to become his on turning 25, to be sold only to his brothers. Issue

• Fee Simple - Right to Alienate Judgment (Sir John Romilly)

• The restraint to sell to only one person, and failing that to nobody would allow someone to complete preclude alienation of a fee simple, by choosing a person who was not going to puchase the estate.

• This restraint on the disposal of land is invalid in view of the nature of the estate. Re Macleay (RC 1875) Facts

• Land was willed on the condition that it was not sold out of the family. Issue

• Alienation of fee simple - All power removed Judgment (Sir George Jessel)

• The test on whether a restraint on the alienation of a fee simple is valid is whether it takes away all power of alienation.

• In this case

• there is a large number of people to whom the estate may be alienated

• Thus the restriction is valid. Re Rosher (Ch 1884) Facts

• The testator placed a restraint on the alienation of his estate, that where his son wished to sell the estate during the life time of his widow she should have the option to purchase the land at a specific price well below the market value.


• Fee Simple - Right to Alienate Judgment (Pearson J)

• The original rule regarding gifts by will or otherwise of fee simple is that no conditions may be attached that are repugnant to the form of the original gift.

• There are no exceptions for conditions for a limited amount of time in the case law.

• Thus the current restriction is invalid in that it offends against the original principle. Re Cockerill (Ch. 1929) Facts

• The estate was willed to P, subject to the payment of rates and death duties and on the condition that, should he sell it within of 20 years of the testator's death, that he sell it to a certain grammar school for £300 an acre.

• The grantee did sell it within 20 years for the above price to the school Issue

• Fee Simple - Right to Alienate Judgment (Eve J)

• The condition is void in that the devisee is precluded from selling to anyone but the school.

• Thus the sale had nothing to do with the will, and the devisee alone is liable to death duties. Re Dunne (HC 1988) Facts

• The deceased willed his land to his family on the condition that they were not to transfer the land to a particular family.

• The executor sought a judicial determination as to whether the condition was valid. Issue

• Fee Simple - Right to Alienate Judgment (O'Hanlon J)

• An absolute restriction on the alienation of a fee simple is void, but where a restriction is anything less than total it must be decided on a case by case basis whether as a matter of public policy it so restrictive so as to be void.

• The court must balance the competing interests of giving effect to the grantor's wishes with the need to ensure the free marketability of land.

• In this case there is no public policy interest in furthering old family antagonisms.

• Also, the qualification is vague, in that as time passes it will be very difficult to identify members of the family. Fitzsimons v Fitzsimons (HC 1992) Facts

• The plaintiff was given a fee simple interest in part of his father's land.

• The remainder of the land was willed to his mother for life, to pass to the son in

fee simple provided he was still beneficial owner of the original land. Issue

• Right of alienation - Conditions of acquisition Judgment (Keane J)

• The condition does not prevent the sale of the lands.

• Thus it is not repugnant to the fee simple interest. Determinable Fee (Coughlan, Property Law p.26-27)

A determinable fee is a fee simple that will end immediately upon the occurrence of a particular event, which may or may not happen. The event must not be certain, as a fee simple must be capable of lasting forever. Upon the end of a determinable fee it reverts to the grantor. Phrases such 'while', 'during', 'until' etc will give rise to a determinable fee. These words are part of the words of limitation. The right retained is called a right of reverter and is too nebulous to allow its transfer inter vivos Fee Simple Upon a Condition (Coughlan, Property Law p.27-28)

This is a fee simple subject to a condition subsequent which, if broken, may cause the estate to end. Phrases such as 'provided that', 'but if', 'if it happens that' will give rise to a fee simple upon a condition. These words are not part of the words of limitation, hence they only give the grantor a 'right of entry for condition broken' on the land. If they choose not to exercise this right, the land will remain in the possession of the occupier. s.6 of the Real Property Act 1845 allows the transfer of a 'right of entry for condition broken upon land. The Rule Against Perpetuities

The rule against perpetuities seeks to prevent a situation where it is possible that land will vest outside an reasonable time period i.e. the perpetuity period. If this happens, the interest that is to vest is void. The perpetuity period is decided by reference to a person or persons alive at the time of the grant plus 21 years. This rule does not apply to determinable fees. Attorney General v Cummins

• The right to receive certain rents on land was granted by the Crown until the grantees received or were paid £5,000.

• The Crown sought to redeem these rents 200 years later.

• The court held

• The rule against perpetuities did not apply to a common law conveyance.

• The determinable fee remains with the grantor and in the case of reversion expands into a fee simple interest - were it to become void there is no one in whom the land could vest upon the end of the determinable fee. Walsh v Wightman

• A fee farm grant was made to the Presbyterian Congregation by the trustees of the estate where the Congregation existed.

• It was provided that, were the Congregation to cease to have a connection to

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